A Delicate Decision

DISSENTING OPINION

NO WRITER ATTRIBUTED
October 1, 1977

IT IS IMPERATIVE that the Supreme Court settle the constitutionality of quotas and the consideration of race as a factor in school admissions and hiring practices. The Court can no longer afford to postpone a decision, as it did in 1975 by declaring moot the questions raised in DeFunis V. University of Washington Law School. Nor should it follow the Justice Department's recommendation and send the case back to a lower court.

Because Allan Bakke's suit provides an imperfect test case, the Court should instruct the U.C. Davis Medical School merely to reconsider Bakke's application for admission. The justices should tread confidently but lightly, however, and produce a unified majority opinion that supports affirmative action and compensatory programs for the disadvantaged, but still rules unconstitutional the use of strict quotas and ethnic background as factors in admissions decisions.

The question of admissions practices is difficult, as the ostensibly objective criteria of test scores and grades are never the sole determinants. The Court should not impinge on the flexibility of schools desiring a varied class make-up. Nevertheless, the use of race as a factor in admissions circumvents what should be the true intent of affirmative action programs: helping disadvantaged individuals overcome environmental liabilities. Opening up compensatory programs to those individuals who no longer suffer the disadvantages of historic repression does little good for those who still do. Programs such as U.D. Davis Med School's quota system for non-whites should be open to all individuals from disadvantaged backgrounds, regardless of their ethnic background. Flexible guidelines should replace the use of any strict quotas. While such changes would make the admissions process more difficult--requiring additional recruiting as well as a more thorough identification of individuals--it is more equitable and socially just. And, because minority groups have suffered from a disproportionate amount of discrimination, they will still be the prime beneficiaries of such actions.

Minority groups do have valid claims against a system that has routinely excluded them from its benefits over an extended period of time. But the problems from which they suffer often have deeper, class origins, and this is the level at which the Court should decide.